M.A.C.A.No.239/14 1
## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_
## _PRESENT_
_THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._
_FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943 MACA NO. 239 OF 2014_
_AGAINST THE ORDER/JUDGMENT IN OPMV 734/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM APPELLANT/S:_
_NARAYANAN @ RAVI S/O.AYYAPPAN,POOKKOTTIL HOUSE,KADAVOOR VILLAGE,KOTHAMANGALAM,PIN-686691._
_BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI_
## _RESPONDENT/S:_
- _1 LEELAMMA VASUDEVAN OZHAKKANATTU HOUSE,MUVATTUPUZHA,PIN-686661._
_2 PRINCE S/O.MADHAVAN,KOCHUMALAYIL,VANNAPPURAM,KALIYAR,PIN685607._
_3 THE ORIENTAL INSURANCE CO.LTD MUVATTUPUZHA,PIN-686661._
_THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_
M.A.C.A.No.239/14
2
## **JUDGMENT**
This appeal is filed by the petitioner in O.P.(MV) No.734/2009, on the file of MACT, Muvattupuzha, seeking compensation for the injuries sustained to him in a motor accident occurred on 23.05.2009. The appellant was working as a telephone mechanic in BSNL and was aged 57 at the time of accident. Consequent to the injuries sustained in the accident, there was permanent disablement and the same was certified as 20% by the doctor. He had undergone treatment for a long period and the total number of hospitalization comes to 50 days. The amount of compensation claimed by him was Rs.9,00,000/-.
2. The claim petition was contested by the 3[rd] respondent insurance company alone. They accepted the coverage of policy in respect of the vehicle, but they disputed the negligence and also the quantum of compensation. In the trial, PW1 was examined and Exts.A1 to A14 were marked from the side of the appellant. No evidence was adduced from the side of the respondents. After the trial, the Tribunal passed an award allowing a total compensation of Rs.4,05,410/-. Being aggrieved
M.A.C.A.No.239/14 3
by the said amount, this appeal is filed.
3. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent. The learned counsel for the appellant contends that the amount awarded by the Tribunal is very low, particularly under the head of compensation for permanent disability, loss of earning, pain and suffering and loss of amenities. In respect of his contention with regard to the compensation for loss of earnings, he points out that, as per Ext.A9 certificate issued from the BSNL, he was on medical leave for a total period of 491 days, in which, the number of commuted leave availed was for 215 days and earned leave for 276 days. The Tribunal has taken only the period of earned leave. According to the learned counsel for the petitioner entire amount in respect of 491 days should have been granted by the Tribunal. In support of his contention, he relies on the judgment rendered by this Court in **George v. Krishna Venu and Others [2020(4) KLT 239].** In the said judgment, this question was specifically considered by referring to the relevant provisions and observed that, when an employee meets with an accident and is forced to go on medical treatment for long, then even if the employee has
M.A.C.A.No.239/14 4
availed eligible leave for undergoing treatment, for the purpose of calculating loss of earning in a claim under Section 166 of the Motor Vehicles Act, a claims tribunal has to compensate the employee for the loss of leave period by awarding appropriate amounts. The reasoning adopted by this Court in the said judgment is that, his eligible leave could have been utilized by him for his other purposes, in case he was not forced to use the same for treatment of the injuries sustained in the accident. I fully agree with the view taken in the said judgment. In the light of the same, the appellant will be entitled for compensation for loss of earning for the entire period of 491 days. It is found by the Tribunal that the monthly income of the appellant at the relevant time was Rs.14,163/- and I find the same as an acceptable figure. If that be so, the compensation for loss of earning for 491 days would come to Rs.2,31,801/- (14163/30 x 491). The amount awarded by the Tribunal under this head is Rs 1,30,300/- and hence the additional amount receivable by his shall be Rs 1,01,501/-
4. Next contention is relating to compensation for permanent disability. In this case, even though the doctor issued
M.A.C.A.No.239/14 5
Ext.A13 certificate certifying the percentage of disability of the petitioner as 20%, the Tribunal has taken only 12%. The learned counsel for the appellant points out that, the doctor who issued the medical certificate was examined as PW1 and he reiterated his findings while he was examined. As Ext.A13 document is proved by examining the author thereof, I am of the view that the contents of the documents can be accepted. This is particularly so, as the percentage of disability of a person is to be calculated by a competent doctor and I find no ground to disbelieve the finding of PW1 which is supported by Ext.A13 disability certificate. The next element to be taken in to consideration for the purpose of assessing the compensation for permanent disability is the monthly income. At this juncture, the learned counsel for the 3[rd] respondent points out that, he is a person employed permanently in BSNL and the documents produced by him such as Ext.A10, A11 and A12 salary slips/certificate would point out that, even after the accident and the injuries, he was getting increments in his salary. Hence, he would point out that no loss of earning power is sustained to him with respect to the period during which he was in service. In this regard, it is to be
M.A.C.A.No.239/14 6
noted that he was aged 57 at the time of the accident and as per the service conditions of BSNL, the retirement age is 60. In the light of the increments which he became entitled, even after the accident, the contention raised by the learned counsel for the 3[rd] respondent is to be accepted. However, it cannot be discarded that, the disability suffered by him will certainly have an impact on his earning capacity after his retirement. So, he must be compensated for loss of earning capacity in respect of the period after his retirement. For the purpose of assessing the compensation after the retirement, some guess work has to be made for determining the probable income of the petitioner after the retirement. In the facts and circumstances of the case, particularly considering the qualification as well as the experience of the appellant and also the date of accident, this Court is of the view that an amount of Rs.7,000/- would be a reasonable monthly income for this purpose and it is fixed accordingly. The multiplier to be taken for the said purpose is in respect of the persons coming within the age of 60 to 65, which is seven. The learned counsel for the appellant seriously disputed this. According to him proper multiplier is 9, as he will not be
M.A.C.A.No.239/14 7
reaching 61 years on his retirement and hence he should be treated as a person coming within the age group of 55-60. I am not inclined to accept the said contention. He will be completing the age of 60 on his superannuation and thereafter he cannot be treated as a person under the category of the age group of 55-60.
This is particularly so because, as far as the appellant is concerned, upto completion of 60 years of age, he will be getting all the benefits of his service along with all its increments as well as emoluments and the injuries sustained to him would not deprive him of any such benefits. As mentioned above, as we are concerned with the loss of earning power of the appellant, after his superannuation i.e after completing the age 60 years, for all practical purposes, he should be treated as a person coming with the age group of 60-65. The proper multiplier to be taken for a person coming within the age group of 60 to 65 is 7 and it is the proper multiplier applicable in this case. When assessing the compensation with the above revised criteria, it would come to Rs.1,70,600/- (7000 x 12 x 7 x 20/100). The amount already awarded under this head is Rs 21,600/- and hence the balance amount shall be Rs 1,49,000/-
M.A.C.A.No.239/14 8
5. Another head upon which enhancement sought is pain and suffering, which is Rs.35,000/- as against the claim of Rs.50,000/-. The fact that the appellant was forced to take leave for a period of 491 days indicates the seriousness of the injuries and the treatment which he had undergone for a prolonged period. Taking into account the said aspect, I am of the view that the amount of Rs.50,000/- as claimed by him, is reasonable. Therefore, he is entitled for a further sum of Rs.15,000/- under this head. Similarly, the amount awarded under the head of loss of amenities is Rs.25,000/-, which is on lower side in my view. In the facts and circumstances of the case, appropriate amount should be Rs.40,000/- and hence a further sum of Rs.15,000/- is awarded under this head. Similarly, towards extra nourishment, the amount awarded is Rs.5,000/-. The learned counsel for the appellant points out that he had undergone four surgeries after the accident and considering the same, amount awarded under this head is low. In such circumstances, a further sum of Rs.2,500/- is granted. Similarly, amount awarded under transportation expenses is Rs.4,500/-. It is seen from the records that he had availed treatment in Specialist Hospital, Ernakulam
M.A.C.A.No.239/14 9
and he is a resident of Kothamangalam. Considering this, a further sum of Rs.2,500/- can be allowed under this head.
In the above circumstances, appellant shall be entitled for a sum of Rs.2,85,501/- (Rupees two lakhs eighty five thousand five hundred and one only) [ 101501+ 149000 +15000 + 15000 + 2500 + 2500] in addition to the amount awarded by the Tribunal and the 3[rd] respondent is directed to deposit the amount along with interest at the rate of 8% per annum from the date of petition within a period of three months.
## Sd/- **ZIYAD RAHMAN A.A. JUDGE**
## DG/2.8.21
Judgment dated 30.07.2021 in M.A.C.A 239/2014 is corrected as per order dated 12.01.2022 in I.A. 1/2021.
The amount shown in the 18[th] line of page 7 is corrected as Rs.1,17,600/- (Rs.7000x12x7x20/100) instead of Rs.1,70,600/- and the balance amount shown in the last line of page 7 is corrected as Rs.96,000/instead of Rs.1,49,000/-.
The amount shown in the last para at page 9 is corrected as Rs.2,32,501/- (Rs.101501 + 96000 + 15000 + 15000 + 2500 + 2500) (Rupees Two lakhs thirty two thousand five hundred and one only) instead of Rs.2,85,501/- (Rupees two lakhs eighty five thousand five hundred and one only (101501 + 149000 + 15000 + 2500 + 2500).
Sd/-
Deputy Registrar
